How to Establish Paternity

Here's an overview of common legal issues regarding naming the father of a child when the parents are not married.

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Paternity simply means “the state of being a father.” When an unmarried couple has a child, it’s essential that the father’s paternity be established as soon as possible after the baby is born. This protects the mother, the baby, and especially the father, by greatly reducing the possibility that a judge will deny the father custody or visitation of his child, or other rights to which fathers are legally entitled. It also helps ensure that the child will be eligible to receive benefits through the father, including health, survivors’, disability, and life insurance benefits.

Keep in mind that parents are legally responsible for their children and their support, regardless of whether the parents are married to each other or not. And even if the father did not want the child, or split from his partner before the baby was born, he remains responsible for the child’s support. Having an acknowledgment of paternity is crucial in getting this financial support.

Naming the Baby and Getting a Birth Certificate

In most states, you may give your child any first, middle, and last name you like. Whether you are married or not, you don’t have to give the baby the last name of either parent if you don’t want to, and the child does not have to have the father’s last name to be considered “legitimate.” (See the article Legitimacy of Children Born to Unmarried Parents for more on the subject.)

The procedure for naming a baby is simple. A representative of the local health department or similar agency, or a hospital social worker, meets with the new mother in the hospital immediately after the birth and asks her the child’s name and some questions about the mother’s health and the father’s name and occupation. The mother doesn’t have to name the child at this time, though she will probably be urged to do so. The information the mother gives is typed on a form that she signs. The state then issues a birth certificate, which usually doesn’t reveal whether or not the parents are married.

If the baby isn’t born in a medical facility, the mother or the physician, midwife, or other person assisting in the delivery must notify health officials of the birth. Again, there’s no legal requirement that the baby be named at this time, but it’s common to do so.

In either case, if the mother did not name the baby or did not give the father’s identity, it is possible to update the birth certificate later to include that information. The state Department of Health or Bureau of Vital Statistics in every state will have procedures for adding the father’s name to the child’s birth certificate or amending the birth certificate to show the child’s name. If you are going to be adding the father’s name to a birth certificate, most states will require an unmarried father to sign an acknowledgment of paternity.

 For information on your state’s department of health (which will either handle vital statistics or refer you to the state Bureau of Vital Statistics), visit the website of the National Center for Health Statistics (NCHS).

Naming the Father: How to Establish Paternity

The best way to establish the father’s paternity is by naming him on the baby’s birth certificate. Under U.S. Department of Health and Human Services regulations, all states must offer unwed parents an opportunity to establish paternity by voluntarily signing an acknowledgment of paternity, either at the hospital or at a later time. In many states, as a result of political pressure to reduce the number of mothers on welfare by ensuring that there is someone else with an obligation to support the child, hospital personnel will make every effort to get the father to sign the acknowledgment.

In some states, including California, the only way that an unmarried father’s name can be placed on a child’s birth certificate is if the father signs a voluntary declaration of paternity. If the father is not present at the hospital following the birth, the mother will not be able to list him as the father on the birth certificate in his absence—the father and mother will instead have to sign the voluntary declaration of paternity at a later time, and have the father’s name added to the birth certificate later. A voluntary declaration of paternity signed by both parents has the same legal effect as a court order, so once it is signed and submitted to the appropriate agency, the father’s paternal rights are firmly established. If you live in a state that requires a voluntary declaration of paternity before placing an unmarried father’s name on a birth certificate, and you and your partner split up before the baby is born, you may have to bring a legal action to establish paternity if your ex-partner won’t sign the voluntary declaration.

How to Prepare a Paternity Statement

If both you and your partner are present for the birth, and it’s clear that your partner is the child’s father, it’s unlikely that you will be able to leave the hospital without naming the father on the birth certificate or signing a voluntary declaration of paternity.  However, if for some reason you do not name the father on the birth certificate or sign a voluntary acknowledgment of paternity at the hospital, then it is essential that you prepare and sign either or an informal “paternity statement.

As discussed above, all states have official forms on which a man can voluntarily acknowledge his paternity of a child. In some states, there is a time limit for signing these forms, but in others there is no time limit, and in many states, the father’s signature on the forms acts as a substitute for a court order, officially establishing his parental relationship with the child. A homemade form will not accomplish the same thing, so before you create one, find out whether you can still sign a voluntary declaration of paternity with the state.

Official State Paternity Statements

All states have official forms on which a man can voluntarily acknowledge his paternity of a child. In some states, there is a time limit for signing these forms, but in others there is no time limit, and in many states, the father’s signature on the forms acts as a substitute for a court order, officially establishing his parental relationship with the child. A homemade form will not accomplish the same thing, so before you create one, find out whether you can still sign a voluntary declaration of paternity with the state. For information on your state paternity rules and forms , contact your state department of health (find yours on the website of the National Center for Health Statistics (NCHS).

Informal Paternity Statements

Assuming you haven’t signed a paternity statement in the hospital, or used your state’s voluntary declaration of paternity, you can prepare a paternity statement yourself quite easily. A Sample Acknowledgment of Parenthood, to be signed by both parents, is included here.  Use this as a model in preparing your own. Simply Simply fill in the father’s name (and the mother’s), and the child’s name, birth date, and place of birth in the appropriate sections. Prepare two copies of the statement and have your signatures notarized on both copies. Notarization isn’t required, but it’s an excellent idea. In the event the father dies, the mother may have to present the paternity statement to various public agencies—and possibly life insurers and other private companies. Notarization proves that the father’s signature wasn’t forged after the father’s death.

The mother and father should each keep a copy of the notarized paternity statement. Some states have set up procedures to file paternity statements with a state agency. For information on doing this, contact your state’s Department of Health or Bureau of Vital Statistics. To find your state department of health (which will either handle vital statistics or refer you to the state Bureau of Vital Statistics), visit the website of the National Center for Health Statistics (NCHS).

Legal Disputes Over Paternity

Legal disputes over paternity commonly concern a father's responsibiity for paying child support. A father’s refusal to sign a paternity statement will not get him off the hook for paying child support. If a father doesn’t voluntarily sign a paternity statement, the state will go to court to establish that he is the father and collect child support. See Legitimacy of Children Born to Unmarried Parents on this site for more on the subject of standards of proof of paternity.

Other paternity-related legal disputes concern the father's parental rights. If the father signs an acknowledgment of paternity or a paternity statement sometime after the child’s birth, his parental rights are normally still established as long as no dispute over custody or adoption arises in the interim. However, the U.S. Supreme Court has held that if a father waits until a custody dispute arises, it may be too late to establish full parental rights—unless the father has had an ongoing relationship with the child. (Quilloin v. Walcott, 434 U.S. 246 (1978).) For example, the Court denied a father’s right to block a child’s adoption—and, by so doing, cut off his parental rights—in a situation where he had no real relationship with his children and did not try to legitimate them until the adoption proceeding began. (Lehr v. Robertson, 463 U.S. 248 (1983).) In some states, only a father who has established paternity by coming forward promptly and demonstrating a full commitment to his parental responsibilities must be notified of adoption proceedings. (In re Kelsey S., 823 P.2d 1216 (Cal. 1992).) And if he does learn of the proceedings, he may have no legal standing to object.

In many other states, there is a trend towards giving unmarried fathers more rights, especially where the father has promptly and consistently attempted to form a paternal relationship with a young child but was prevented from doing so by the mother’s actions. For example, where the mother failed to tell the father of the birth of their child, if the father later discovers the birth and promptly makes a good faith effort to assume responsibility for the child, the courts generally will protect his rights, as in the Baby Jessica case. (In re Clausen, 502 N.W. 2d 649 (Mich. 1993).)

For information on establishing paternity, especially in child support disputes, see the article Paternity Issues and Child Support on this website.

If you are in a paternity dispute with the unmarried parent of your child, consult an experienced family law attorney. See Nolo's Lawyer's Directory for a list of local attorneys.

Don’t Acknowledge Paternity if You’re Not the Father

 Although signing to acknowledge paternity is a very good idea if you are the father of the child, if you’re not the father, or if you are not sure, don’t sign on the dotted line. If you sign a paternity statement, you’ll be liable for child support and even for reimbursing the state for welfare payments made to the mother, until you can prove that you are not actually the child’s father.

Don’t Lie About the Child’s Father

In states where the mother can state the name of the father even if he is not present, some women are tempted to write down a name other than the actual father’s on the birth information form. This is most common when the mother no longer sees the biological father and is involved with someone whom she would prefer to have raise the child or who is financially better able to do so. Identifying a man as the baby’s father when that man is not actually the father is a terrible idea. An unmarried couple’s current relationship may not last forever and complicated legal questions of paternity and support can grow from listing the wrong person as the father of a child. In a well-known case (In re Clausen, 502 N.W.2d 649 (Mich. 1993)), the mother of Baby Jessica lied on her baby’s birth certificate, saying that the father was her new boyfriend, and did not tell her ex-boyfriend that she had given birth to their child. When the mother and her new boyfriend gave the baby up for adoption, the ex-boyfriend found out and wanted to step in and reclaim Baby Jessica. A long legal battle ensued between the new adoptive parents and the biological parents, with Baby Jessica caught in the middle (the baby was eventually returned to her birth parents). To avoid such potential problems, it is always best to accurately state who the biological father is.

 

 


 

 

 

by: Frederick Hertz

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